Wednesday, May 18, 2011

The Kobe Bryant Defense

Denis Lacorne brings up the Kobe Bryant case, which I have also discussed in a number of conversations with friends over the past few days. I haven't looked up the details, but the case went roughly like this: Bryant had sex with a hotel employee who apparently initially gave her consent but then said no when the sex turned rough (Lacorne doesn't mention this). She charged rape, but the physical evidence was inconclusive. She then declined to testify after some sort of arrangement was made with the accused, who probably agreed to pay her an undisclosed sum and who did make a public apology. He was not convicted.

Could something like this happen in the DSK case? Possibly. Financial compensation might mean more to the victim than vindication in court. It would keep DSK out of jail, but his political career would still be over. But if the physical evidence is damning, he could be convicted even without the victim's testimony, I presume (Mitch, what do you think, as a former prosecutor?).

4 comments:

The brother hardly speaks any English but speaks "elegant French", the C+/iTélé reporter states. He said he was shocked by the American reporters, some of whom sent notes up to him "we'll give you $10,000 for your interview!" He agreed to meet with that French reporter explicitely because she's a woman, apparently because he figured she wouldn't be prurient and (the fact she's White-House accredited mustn't hurt in terms of proving she's professional.) He indicated that he'd picked the lawyer when he understood that something "very very bad and traumatizing" had happened to his sister, so he googled 'best lawyer in new york' and picked the one who looked the most trustworthy and the most specialized in "bodily harm".

France2 is right now explaining what "lawyer" means in English: the defense has the same rights as the prosecution; they work with private investigators. They can trash the plaintiff and the police officers who investigated.

French lawyers: how is that different from the French system? I know the juge d'instruction is supposed to have one team to help the defense and one team to help the prosecution but...?

Two moments were chuckle-worthy:- When they gave an example of how it works:"Aud Jee Seem Sonn" - it took me a while to understand what the journalist was referring to. ;)- Christine Lagarde would be considered for the next IMF position, 'except they may not trust her after what DSK did'*, plus 'she may be investigated for the millions in the Tapie case'.*it may be prejudice on my part but I can't see a woman assaulting people in the same way DSK is alleged to.

I’m not sure I have much to offer on this particular question. My life was mainly street level narcotics, hookers and the occasional senseless drug murder, so this would be well above my pay-grade. (But I have to say that the Kobe Bryant case is what got my antennas raised when the victim hired a lawyer. Although, from everything we know about DSK’s victim, she doesn’t seem like the type to take the money whereas the woman in the Kobe Bryant case appears to have been exactly the type).

I think most trial lawyers would say that the case is over if your victim turns around on you, especially in sex crimes prosecutions which are so dependent on the victim’s testimony. This happens all the time in domestic violence and rape cases (not the buying off but having the victim change her mind about cooperating). In the rare case, I guess you can try to read her grand jury testimony or the police report to the jury while she just sits in the witness stand and glares at you, try to get in as much of her story as possible via the investigators and then just hope for the best. If she doesn’t testify for the defense out of fear of a perjury rap and the jury is willing to read between the lines and everybody is basically willing to bend the rules to do justice, maybe you get a conviction and maybe it’s sustainable. It’s been done before in domestic violence cases but, personally, I think the odds of winning the lottery are far better.

The physical evidence won’t help at all. On it’s own, it says nothing about whether a sexual assault took place. Assume the worst for DSK: He has deep scratch marks on his body. She has marks of violence all over her body and his sperm on her clothing. So what? Sex crimes are all about intent. Without the victim’s testimony to give the physical evidence meaning and context, it’s worthless. If she decides to sell out there just isn’t much the prosecutor can do. The prosecutor can either lose gracefully or lose nasty and try to go after the lawyer or the victim but he’s are almost certainly going to lose.

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I have been a student and observer of French politics since 1968. In that time I've translated more than 130 books from the French, including Tocqueville's Democracy in America and Thomas Piketty's Capital in the 21st Century. I chair the seminar for visiting scholars at Harvard's Center for European Studies and am a member of the editorial board of French Politics, Culture, and Society and of The Tocqueville Review/La revue Tocqueville. You can read some of my writing on French politics and history here and a short bio here. From time to time I will include posts by other students of France and French politics (accessible via the index link "guest"). My hope is that this site will become a gathering place for all who are interested in discussing and analyzing political life in France. You can keep track of posts on Twitter by following "artgoldhammer".